Challenge to clemency system could be moot

By Dara KamThe News Service of Florida

Monday

Sep 30, 2019 at 4:16 PM

TALLAHASSEE — Legal battles are intensifying over a state law carrying out a constitutional amendment that restored felons’ voting rights, but the new process appears to be ending an older lawsuit that challenged what one federal judge branded Florida’s “fatally flawed” clemency system.

The November passage of the constitutional amendment has rendered moot a federal lawsuit filed in 2017 on behalf of a number of Florida felons, attorneys for the state and the plaintiffs wrote in briefs filed Friday with the 11th U.S. Circuit Court of Appeals.

The court this month asked the two sides to submit briefs after the approval of Amendment 4, which grants voting rights to felons who have completed their sentences, and a law passed during the spring legislative session. That law (SB 7066) carries out the amendment and requires Floridians convicted of felonies to pay fees, fines and restitution related to their crimes to be eligible for voting-rights restitution.

Voting-rights advocates and elections-rights groups have challenged the law in court, arguing it imposes restrictions not envisioned in the constitutional amendment.

The case pending at the federal appellate court was filed long before passage of Amendment 4 and challenged a lengthy and cumbersome voting-rights restoration process that has required action from the governor and Cabinet acting as the state’s Board of Executive Clemency.

Siding with plaintiffs last year, Chief U.S. District Judge Mark Walker found the state’s voting-restoration process violated First Amendment rights and 14th Amendment equal-protection rights of felons.

Walker ordered Florida officials to revamp the system. But siding with the state clemency board, the Atlanta-based federal appeals court blocked Walker’s order from going into effect while the case remained pending.

In the court filings Friday, lawyers for the plaintiffs wrote that the felons “are now eligible to vote under Florida state law, so this appeal is moot.”

“Every plaintiff has paid off their legal financial obligations, including all restitution, fines, costs and fees in full,” Fair Elections Center senior counsel Jon Sherman wrote in the plaintiffs’ filing.

The outcome of the legal battles over the new state law won’t have an effect on the plaintiffs, “because all plaintiffs are eligible to vote now,” Sherman argued.

“Respectfully, to the extent this court believes that there are any unresolved factual questions or unresolved questions as to the meaning of new state laws and believes that these questions are relevant to its determination of mootness, these questions may not be decided by this court; those are questions for the district court and Florida’s state courts, respectively,” he wrote.

Lawyers representing Gov. Ron DeSantis and the state also argued that the case, known as Hand v. Scott, should be dismissed.

“Because it now appears that all plaintiffs have satisfied any outstanding legal financial obligations, they have regained their right to vote, and their challenge to the executive clemency procedure is now moot,” the state’s lawyers argued.

The restoration of felons’ rights has long been a controversial legal and political issue in Florida, with critics of the state's process comparing it to post-Civil War Jim Crow policies designed to keep blacks from casting ballots.

Florida, with about 1.6 million felons, has been considered an outlier in a nation where more than three dozen other states automatically restore the right to vote for most felons who have completed their sentences.

The move to dismiss the case at the federal appeals court comes as Florida Agriculture Commissioner Nikki Fried — the Cabinet’s lone Democrat — is pushing DeSantis and her Cabinet colleagues to overhaul the clemency process, which is used to restore voting rights and other civil rights such as the ability to serve on juries, possess guns and receive state occupational licenses.

“There are more than 10,000 disenfranchised Floridians with open, pending applications for full restoration of civil rights,” Fried wrote Friday in a letter to DeSantis and his fellow Republicans on the clemency board, Chief Financial Officer Jimmy Patronis and Attorney General Ashley Moody, urging them to take up the matter following an Oct. 8 Cabinet meeting.

Fried said a backlog of cases could be remedied by amending clemency rules, which have changed over the years under different state leaders.

Under the current system, the state has required felons to wait five or seven years to apply for rights restoration — and years after that to complete the process. Former Gov. Rick Scott and former Attorney General Pam Bondi pushed through the process shortly after taking office in 2011.

In the eight years after the process went into effect, the clemency board restored rights to about 3,000 of the 30,000 felons who’ve applied, compared to more than 155,000 whose rights were restored under former Gov. Charlie Crist and about 70,000 who regained their voting rights under Crist’s predecessor, Jeb Bush.

According to the Florida Commission on Offender Review, which handles applications for clemency, the agency currently has a backlog of more than 10,600 cases.

The drawn-out clemency process was the primary reason behind the push for the constitutional amendment, which received support from more than 64 percent of Florida voters last fall.

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